The following edited text is based on an interview with Max Haiven by the Berliner Gazette on the topic of their annual theme UN|COMMONS. It is published under Creative Commons License. Established in the late 1990s, the Berliner Gazette is an online magazine and a platform for hosting discussions and debates on topics including digital technology, new forms of engagement and transnational collaboration.

Between the public and the commons

You ask about the utility and power of claiming a “right to the commons,” and how that might inform the circuit of struggles we are today encountering in Canada, where I live. I think the answer here depends on how you imagine “rights.” Is a right something granted by a state or sovereign, or is it something that emerges more organically from communities as they struggle? I think the latter is true.

And so then how can we speak of a “right” to the commons? I think we cannot imagine that this right will ever be “granted” to us by those in economic and political power. In the end, the ideal of the commons (horizontalist, grassroots democracy, sustainable reciprocity, community-level decision-making and radical autonomy) is completely antithetical to the state-form and the Eurocentric regime of sovereignty that has, to date, been the “container” of “rights” as we are accustomed to imagining them. So any “right to the commons” would necessarily need to be an insurgent right, a radical demand aimed at undermining and replacing state sovereignty.

Here I think it is vital to make a critical and an analytic distinction (one which is all too often avoided) between ideals of the “public” on the one hand and the “commons” on the other. They are not the same, though there is some overlap. You can have a public park, or a public broadcaster or a notion of the “public interest” which are not commons. The state can sometimes be compelled to act in the interests of the public (by, for instance, providing public services like healthcare or education), but that does not automatically make these services our commons.

Often, and especially in neoliberal times, these services operate in hierarchical and bureaucratic ways, and often they are driven by capitalist measures of efficiency and productivity. By contrast, the commons implies and necessitates participatory and egalitarian reciprocity. It implies people working together at the grassroots to sustain themselves and their communities. If we lose this distinction, we lose the political edge and the promise of the commons too. There are common elements in almost all social institutions, especially ones that are nominally public, but we should maintain the difference between the two ideals.

I agree with Peter Linebaugh and others who inform us that “common” is better thought of as a verb, rather than a noun; it is something we do rather than something we have. If this is the case then the “right to the commons” is, in actuality, the rights we take to struggle for the commons. I think here we are speaking of a “right” in the beautiful double sense that this word gives us in English: both a legal entitlement and something virtuous or correct. In that sense, the right to the commons is the obligation “to common”: to make and make anew the commons, to reclaim and reinvent the commons.

In Canada, I think we can most clearly see this in the struggles against the state of what we can call “extractive austerity.” Our right-wing neoliberal government is insisting on the one hand on an accelerated regime of privatization, of freedom for corporations, and of cuts to public services and, on the other, a reorientation of the whole economy towards extractive industries. It is important to note here that both austerity and extraction are performed in the “public” interest.

Today, in Canada and other capitalist states, the “public” interest has been made synonymous with economic growth and international competitiveness. Police, surveillance and military budgets are, as Nina Power notes, being increased in order to defend the “public” from vague racist threats like ISIS and “terrorism,” but in fact these weapons will be wielded against those of us committed to causing “economic disruptions” to challenge the order of extractive austerity.

Here in Canada this rationale was mobilized to pass one of the most draconian and dangerous pieces of legislation in recent history, Bill C-51, which gives unprecedented powers to the state and its agents to quash protest. This is part of a historic pattern where the ideal of the “public” is aligned with ruling class interests, and the alleged threat to “the public” is the racialized “other,” who must be policed, imprisoned, tortured and, as Sherene Razack says, “cast out.” This is why the notion of the commons is crucial now: it gives us a language to speak of shared concerns, agendas, responsibilities and reciprocities outside of the top-down rhetoric of “the public.”

Let us take the example of the massive demonstrations occurring in Quebec against the imposition of higher university tuition fees. On the one hand, this is a struggle to defend and protect the public nature of the university, to ensure that students have economic access and that universities do not lose their autonomy and public character by looking to corporations or the private sector for support. But for me, the more radical, interesting and inspiring aspect of this struggle is the demand of students to reorganize and reimagine the university, not as a hierarchical state institution working in the public interest, but as commons — as radically more horizontal, participatory and grassroots institutions. Here the ideas of publics and commons overlap, but are not the same.

Decolonizing the commons?

Let us switch gears for a moment. The most inspiring example of commons-oriented struggles in Canada right now are the militant Indigenous struggles against environmental destruction, the exploitation of resources, and the continuation of colonialism by the Canadian government and its corporate partners. Here, these communities, which are often very poor and usually highly policed and enclosed by the state, fight with incredible courage and conviction against the privatization of their lands and the imposition of capitalist domination. As Glen Coultard argues in his brilliant new book, cultural survival is intimately and inextricably tied to protecting a land-base and its political autonomy as a commons — that is, as the site of an ongoing process that is egalitarian, democratic, shared, reciprocal and sustainable. To demand “the commons” is to refuse genocide, quite literally.

But at the same time we need to remember three things here. First, we must not fall into the colonialist trap of romanticizing these Indigenous struggles: they are imperfect and conflicted, and waged at a high cost to participants. These communities (like all our communities to some extent) are grievously wounded after centuries of colonial social and economic brutality. These are not nostalgic spiritualist struggles to “return” to some “state of nature,” they are contemporary material struggles for grounded autonomy and grassroots democracy.

Second, while it might be convenient for us to apply the label of “the commons” to these struggles, it would risk becoming a Eurocentric imposition. These communities have their own terminology. For instance, in the territories where I live, the traditional jurisdiction of the Mi’Kmaq, there is the term Netukulimk, which I will not pretend to understand, but which speaks with much more sophistication and nuance to the things we attempt to sum up in the idea of the “commons:” rich reciprocity, inter-reliance and the connections between communal and individual responsibility and autonomy.

Finally, these Indigenous struggles are not for a commons equally for everyone — they are a fight against colonialism and for insurgent Indigenous sovereignty (which is not at all the same as European-style state sovereignty). We must admit that colonialism and the theft of Indigenous lands occurred in part through the expansion of the European or settler commons under the sovereignty of the colonial-settler state. As a settler in Canada, I cannot simply struggle for the commons if they are to be located on stolen Indigenous lands.

Therefore, here in Canada, our struggle to protect our lakes and rivers as commons must also be struggles to overcome colonialism. This is a contradiction. We must dwell uncomfortably with this contradiction. It is a contradiction that cannot be overcome simply in theory but only in practice, struggle and solidarity.

The commons as insurgent “right”

Let me first say why I am concerned about framing the commons as a “right.” Unless we agree that (a) a right is always taken and defended from below, never given or protected from above, and (b) that the commons is always a process, then we risk delivering the idea of a “right to the commons” into the hands of the state. And we have seen how eager the neoliberal state has been to sacrifice our rights to capital on the altar of “competitiveness” and “security.” I am not enthusiastic for the state to admit to the commons as a right for this reason. Adorno once told us (to paraphrase) that as soon as one can speak of the word “culture” one is actually speaking of administration — as soon as the concept of “culture” as such gains its linguistic autonomy, its actual autonomy is lost. So might we say of a “right” to the commons: one worries that, as soon as the commons are articulated as a “right”, their radical character may be lost.

Let me give you an example: today the idea of the “commons” is fairly widely accepted in North American urban planning and architecture, and the term is, by and large, used to add a euphemistic gloss to new forms of semi-privatized “public” space. For instance, say a developer wishes to build a huge corporate office tower: they may, as an act of patronizing benevolence, opt to construct a little piazza out front, where the alleged “public” will be given the opportunity to congregate, to interact, to play, whatever. This hollow commons is justified and sold to us with all the right language: we are told it will be as space of civic dialogue, or citizen engagement, of “conversations” and “community.” But, in actuality, it will be a highly policed dead zone. Similarly, plenty of corporatized universities in North America call their commercialized cafeterias or library foyers “learning commons” to cover over the fact that they are little more than glorified shopping malls.

And so I have proposed, earlier, seeing the “right to the commons” not as a thing granted from above, but a commitment to a process from below. Our “right to the commons” is not a hard and fast thing but a promise we make to ourselves to do the work of “commoning”: to strive towards a society more in keeping with what Nick Dyer-Witheford, following Marx, calls our “species being”: we are a species of technologically reflexive imaginative collaborators. The commons, to my mind, is the inherently just or ethical way of expressing and articulating that species being.

This is, I think (and I do not wish to speak on their behalf), behind the radical claims of the pan-Canadian group No One Is Illegal, who rally behind the slogan “no borders, no nations, stop deportations.” As Harsha Walia illustrates in her phenomenal book, they insist on the radical equality of the life of refugees and other undocumented migrants and do direct action and public education to fight against deportations, harassment and surveillance. They are very much focused on building up communities of struggle and solidarity.

Ironically, given that it is a nation made up of immigrants, Canada — like other colonial-settler states — is extremely hostile to many migrants, even though they are the backbone of the economy. But No One Is Illegal is not simply supplicating itself before Canadian society and the state, begging for tolerance, acceptance and inclusion. Rather, they start from the radical position that all human lives are worthwhile, that borders are and have always been a form of social violence; that they operate to make people vulnerable to capitalist exploitation.

I think we can glimpse the potential of an insurgent “right to the commons” in the work of this group (and let me be clear that this is only my interpretation, not their stated position): they are insisting that we not only allow migrants into the “community of rights” guaranteed to citizens by the state (a state which has and always will serve colonialism and capitalism). Rather, they are insisting that rights are claimed and taken, that they emerge from struggle and solidarity. Moreover, they aim explicitly to create a radically different society from below based on these values, a society where we hold life and abundance in common.

Not only migrants, but every one of us have a “right” to this commons to-come if we are willing to fight for it, this commons we are building and we are yet to build. Of course, such struggles will necessarily need to cite and also defend the existing human rights currently guaranteed by the state, which have been won through years of struggle: freedom of speech and assembly, freedom from discrimination, and so on. We cannot abandon these. But we also can’t be limited to that horizon. The commons is a dream of something much more profound.

Beyond the contract

If you will forgive me the semantic games, I would venture that “human right” is something of a contradiction in terms. Why? Because I think this terminology is bound up in a colonial and capitalist/modernist form of thinking that makes us further reliant on the state. The idea of human rights, at least as they are conventionally articulated, is one based on the irreducible and self-contained, contract-making individual. As Angela Mitropoulos and Charles Mills, among others, have shown us, this idea of the contract-making individual runs all the way back through Western political thought, and is the source of all political and economic power: the voluntary or involuntary contract between the individual human actor and the state. The individual gets certain “human rights”; the state gets sovereignty.

But we must deconstruct this. First, of course, the political contract-making subject in the minds-eye of both these philosophers and current-day mainstream politics is essentially male, white and property owning: everything, including rights, are interpreted as “private property.” The highest offense is a breach of private property of the individual. Hence, as Mills illustrates, the supposed contradiction that the United States, then a slave-powered society, could be founded on humanistic principles of freedom and democracy. And as numerous scholars are noting, it’s precisely this contradiction that is at the root of the current crisis, where the Black Lives Matter movement is rising to refuse the continual murder and incarceration of black people.

Second, the image of the rights-bearing individual that is at the heart of the Eurocentric ideal of “human rights” is a lethal fantasy: we are, none of us, self-sufficient monads. We rely on community, collaboration, cooperation and commons, even if our access to these are mediated by the state or by capital or otherwise by power relations. We humans simply cannot survive without one another. The “individual” in this sense is a dangerous but intoxicating fiction, and one afforded mostly to the privileged and wealthy who have the luxury of “forgetting” or rendering invisible their dependence on others.

We essentially live in a system that exalts individualism, which means not only consumerism and selfishness, but also a hierarchy where some of us are rendered abject and “dependent” while some of, by virtue of wealth, because we can buy whatever we want without having to engage with the human beings who made that thing, exist within the illusion that we are completely in-dependent. Right now, the web of interdependence is largely built on exploitation: I rely on the exploitation of the Guatemalan workers growing the bananas I ate this morning, and the Chinese kids who put together the computer on which I’m typing this. Because I come from a middle-class background and a rich country, I can conveniently forget our interdependence.

Third, the exploitative web of collaboration of which we are all part is not only “human”; it involves plants, animals, microbes, the atmosphere, the water system. We exploit “nature” as a means to deny our inter-reliance within it, and with grave consequences. So to speak of “human rights” is to really speak of our rights to maintain a lethal abstraction: the idea we are each self-contained individual human actors. Essentially it is a right to lock ourselves within a system which is actually destroying our souls and destroying the earth because we have lost track of our true “species being” as imaginative collaborators working within and as part of a much broader network of human and non-human actors. So forgive me this sort of hippy-ish detour, but I think it is important because of the potential of the idea of the commmons is to break us out of this conceptual and political box, if we allow ourselves to imagine broadly.

What (who?) comes after the right to the common?

Let me deepen what I have suggested before: the “right to the commons” is not a finished legalistic thing given from above, but a process constantly animated by struggles from below. Let us say this process from below is one of reweaving the network, of building new non-exploitative collaborations and relationships not only between humans (new forms of cooperativism, new forms of collaboration, new forms of co-habitation, new political mechanisms, new economic relations), but also between humans and the rest of creation, with non-human actors as well: new relationships with the minerals and plants we today reduce to mere “resources,” new relationships with animals and microbes and the atmosphere and rivers. In this sense, can we say that the “human right to the commons” is the right to discover our common human place and potential? Our right to create non-exploitative or at least reciprocal commons? Again, this right is more of a promise than a fact.

Let me be more concrete. Let’s think about the Creative Commons licensing movement, which attempts to take intellectual property like music or software or novels or training manuals out of the hands of profiteers and put them in the public domain. Sure, we can demand a human right to data, to knowledge, and I support such efforts. But by whose hands will such a right be delivered? We can never tire of repeating Jacques Rancière’s question: who is the subject of the rights of man? Ultimately, such a right, at least as it is typically framed, is really a negative right against corporations, who would be forbidden from owning or monopolizing information. That’s a fairly weak position, conceptually and politically. The same goes for discussions around access to the internet, or privacy: we often frame these demands for rights in a negative, defensive fashion.

I think the more radical idea here is: what would it mean if these things were actually all free (as in freedom), if we actually achieved our goals? We would be very different beings, very different humans, would we not? We would, for instance, be able to collaborate in much more fluid and dynamic ways. We would have unmediated access to the accumulated knowledge and expertise of our whole species. Wouldn’t this make us something different than we are now? And then, if we had this power, what of our responsibilities to use it wisely? Already we have seen that, when we accede to the regime of state and private property, it manages our collective intellectual and creative energies very poorly: it orients them largely towards profit and exploitation. Our powers have been turned against us, to the point where we are at risk of undermining the network ecology of collaborative life that actually sustains us. Ecce Homo! This is what comes of the fetishization of the individual!

I think it’s this line that separates out the more radical and provocative thinkers regarding the idea of commons-based peer production and those who prize these ideals as free-market panaceas. From a right-wing libertarian perspective, new technologies of collaboration, from free software to the sharing economy, allow us to achieve and fulfill the ever-deferred promise of individualist liberation. For instance, a lot of the enthusiasm for Bitcoin boils down to the “anarcho-capitalist” hallucination that we could each be “free” if only we had nothing in common except a single, unassailable measurement of value, “one coin to rule them all,” so to speak.

Here we basically have the impossible adolescent dream of a complete liberation from community, responsibility, reciprocity and accountability. From a more radical perspective, these technologies matter only to the extent they help us build commons-in-struggle and transform social relations as collective facts. That is, these technologies have incredible potentials to not only transform the economy, but to transform us as subjects, to make us more (not less) common, interdependent, compassionate and politically and morally fearless.

Let us take another example: the struggle against hydraulic fracturing, or “fracking.” We just waged a major struggle against this in my region of Canada, and we won: we achieved a moratorium on the practice, which otherwise could have destroyed the whole watershed and ruined the rivers, lakes and streams. Here, we might think of this struggle as being for the hydro-commons. But as Astrida Neimanis has noted in her very interesting discussion of water and commons, if we take water seriously, it begins to erode and blend the categories of thought we once imagined were eternal. After all, our bodies are over 70% water, we cycle water through us, and our lives are ultimately dependent on water — it is very literally our common substance.

So acknowledging the commonality, and making water a commons, let alone defining a “right” to the hydro-commons, implies we must question and deconstruct the binaries of human and non-human, self and other, individual and community. On the far side of that deconstruction is what might be called the “human right to the commons”: the right to be human in common; the right to a common humanity as an open and not unproblematic question of responsibility and reciprocity. So when we struggle against fracking and the threat it poses to our water, we are not just fighting for the human right to water as defined by the United Nations of some other top-down body, we are fighting for something much more profound too.

But this does not for a moment render illegitimate or irrelevant the need to fight for our fundamental “human rights” as they are currently defined by the state. Nor does it disqualify efforts such as those aimed at defining the rights of “Mother Earth” or of particular rivers or streams, as they are doing in Bolivia today (though in imperfect ways). Rather, it is to say that, if you will excuse the neologism, these are struggles for what we might call a “human right beyond human rights,” where, again, rights are a bottom-up process, not a top-down thing. All the state-afforded human rights we have today are in some ways shards or fragments of the radical “right to the commons” I am imagining. They offer us pieces of a puzzle that is always already incomplete. The right to the commons is broken or shattered or fragmented because if it were whole it would forbid and undermine the powers that be: capital and the state.

Indeed, were states to actually obey and respect even the human rights we have on the books at the United Nations today, the world would be much closer to the promise of the commons: the right of children to an education, to health and to material abundance; the rights of Indigenous people to their lifeways; the rights of humans to migrate; the right to be free of racism; the right to practice one’s identity and body and mind and sexuality as one chooses; the right to expression and assembly; the right to water; the right to justice. The reason these are denied is because member states instead protect corporate and elite interests.

For instance, in Canada the state simply abrogates its international responsibilities to Indigenous people because if they were to abide by them it would prevent resource exploitation. It ignores the rights of youth to university education because it would require raising corporate taxes to pay for it. These paper rights are, when taken in their fullest sense, essentially antithetical to the accumulation of capital.

In a strange way, the only way these paper rights could actually be enforced or respected is through the proliferation and resilience of the commons. The neoliberal state stakes its legitimacy on telling us that, later, eventually, after austerity or after “the war,” it will restore these promised rights. But the truth is that it never will; it never can. The only way these rights will ever be meaningful is if they are not only demanded but lived from below, from the commons.

On dreaming of a transnational charter

I can dream of some global process whereby we, perhaps over the span of many generations, negotiate a global charter on the rights to the common. But I think here the process itself is more valuable and radical than whatever finished product we might eventually draft and ratify. I think here we need to look to science fiction for guidance: the work, for instance, of Ursula K. Le Guin or Kim Stanley Robinson or Starhawk. Better yet, perhaps, the seemingly pessimistic utopianism of Octavia Butler. These authors try and imagine the sorts of democratic formations necessary for such a weighty procedure. Indeed, each author, in their way, also tries to imagine some process by which non-humans might also participate or have a stake, something which is also common in North American Indigenous governance.

The reality is that the current structures of power, both globally and locally, will simply not allow us to develop or implement this charter. By no means can we trust the mainstream political institutions: look what they have done with “climate change” — they have sacrificed our futures on the altar of capital. Look how they have utterly failed to implement even the most tepid of the Millennium Development Goals to alleviate global poverty. If is now safe to definitively say that these state-based avenues are largely foreclosed by capital, though perhaps revolutionary governments from the Global South will give us reason to hope.

Yet I think there could be merit in beginning the process of developing this charter now in any case, as a form of pragmatic utopianism. Let us come together locally and globally and define our rights without any expectation that they will listen. Something like this already occurs under the banner of the World Social Forum, though some suggest that it is running out of steam because, of course, other than warming our hearts, such processes have little actual power or authority to prevent the enclosure or destruction of the commons.

I think, though, that this charter begins not in some global universalist congress, but locally, in the particularities of struggle. So, for instance, recently in the region I live, as I mentioned, we had a large fight against hydraulic fracturing. Perhaps a discussion of what the “right to the commons” might mean could have helped us catalyze solidarity amongst diverse groups that participated in this struggle, and might have helped us imagine the lineaments of a common future.

I think many struggles around the world could benefit and also weave together solidarity if they were all asking this common question. In this way, the process resonates with the ethos of the commons: bottom-up, democratic, egalitarian, autonomous. The process of deliberating, debating and determining the “right to the commons” is, in fact, part of the process of building and reclaiming the commons: it exists only in struggle, in its immanent “becoming.” Yet it helps us see how our local efforts are part of a global movement with a shared horizon.

But don’t get me wrong: at some point I believe we need to directly confront and overturn the power of capital and the state. And I agree with George Caffentzis that the process of deliberating, debating and determining the commons must ultimately be judged on the basis of whether it moves us towards a place of strength in that confrontation. I agree that any transformation of power must be grounded in a revolutionary transformation in the field of daily life to rebuild community, autonomy, self-sufficiency and grassroots democracy: the commons. But there is a comforting myth that, if we organize the autonomous commons from below and exit our dependency on the state and capital we can build a new world within the ruins of the old and overturn power without tears.

Perhaps the commons can simply outgrow and overturn the established system without resistance, but I’m skeptical. More practically, people create commons not out of good-will and happy ideas (though these are necessary at some level), but out of struggle and necessity. Commons emerge as we attempt to reclaim power, solidarity, autonomy and possibility. And that necessarily implies a confrontation with power, one way or another.

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